BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160001844 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160001844 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160001844 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show the injury he incurred on 11 July 2014 was "In Line of Duty – Approved" instead of "Not In Line of Duty – Not Due to Own Misconduct." 2. The applicant states: a. He incurred a back injury on 11 July 2014 after engaging in physical fitness training during his inactive duty training (IDT) weekend. b. His line of duty (LOD) determination should be amended to show the following diagnoses, for which LOD investigations were conducted, were incurred while entitled to basic pay, did not exist prior to service (EPTS), or in the alternative, to show each condition was permanently aggravated by service resulting in a determination that they were incurred in the LOD: * Diagnosis 1: Lumbago/lumbosacral strain/sprain * Diagnosis 2: Lumbar Spine Degenerative Disease * Diagnosis 3: Bilateral Lumbar Radiculopathy, Lumbar Radiculopathy/ Sciatica c. The LOD investigation was improperly handled by the New Mexico Army National Guard (NMARNG), as it only considered degenerative disc disease associated during physical training instead of lumbago and lumbar radiculopathy, with the conclusion of degenerative disc disease and upper back condition/ spasms with migraines. d. He served six years in the U.S. Marine Corps (USMC) on active duty and another six years in the Reserve before he joined the ARNG in 2010 and graduated from Officer Candidate School. None of his military physical examinations up to that point show a history of any condition related to his back. e. An LOD investigation, dated 21 July 2012, found a lumbar spine injury to be in the LOD, as it occurred while he was playing volleyball during a unit organized physical training event on active duty during annual training. Following the July 2014 injury, he was diagnosed with bilateral lumbar radiculopathy and lumbar radiculopathy/sciatica reported as an aggravation of a previous lower back injury (July 2012), thus clearly demonstrating an aggravation of a prior duty-related condition. 3. The applicant provides: * five-page self-authored statement * medical documentation to include multiple DD Form 2808 (Report of Medical Examination) * Memorandum for Commander, Headquarters and Headquarters Detachment (HHD), 93rd Troop Command, Santa Fe, NM, dated 24 January 2013 with supporting documents * Department of Veterans Affairs (VA) medical documents, dated 2 September 2014 * four-page medical statement from a Dr. P.J.C., of Neurosurological Surgery, Albuquerque, NM, dated 19 March 2015 with VA Form 21-0960M-14 (Back (Thoracolumbar Spine) Conditions - Disability Benefits Questionnaire * Memorandum for Commander, HHD, 93rd Troop Command, subject: LOD Determination (Applicant), dated 13 April 2015 with supporting documents * Memorandum for Joint Forces Headquarters, NM, 93rd Troop Command from the National Guard Bureau (NGB), Arlington, VA, dated 18 August 2015 with DD Form 261 (Report of Investigation – LOD and Misconduct Status) * NGB Form 23B (Army National Guard Retirement Points History Statement), prepared 24 November 2015 * Memorandum for the applicant from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, subject: LOD Investigation Appeal (Applicant), dated 16 December 2015 CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the USMC, the applicant enlisted in the NMARNG on 30 December 2009, for attendance at the State Officer Candidate School. On 11 September 2011, he was appointed as a Reserve commissioned officer of the Army for appointment as a second lieutenant in the ARNG. 2. The applicant provides and his record contains the following medical documentation: a. DD Form 2246 (Applicant Medical Prescreening Form), USMEPCOM Standard Form 93 (Report of Medical History), and USMEPCOM Standard Form 88 (Report of Medical Examination), each dated 28 October 1996, which show he was given a medical examination prior to joining the USMC with no known medical conditions. b. DD Form 2808 (Report of Medical Examination), dated 19 June 2002, which shows he was given a separation physical from the USMC with all areas listed as normal and no known medical conditions listed. c. DD Form 2808, dated 13 February 2011, which shows he was given an entrance physical in order to attend the ARNG Officer Candidate School. He was evaluated in all areas as normal with no known medical conditions listed. 3. The applicant provides: a. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 September 2012, which shows that while on active duty training (ADT), he was evaluated by an on-site medic on 12 July 2012, after he rolled his ankle and fell abruptly, twisting his back while participating in physical training. The injury was considered to have been incurred in LOD with no formal investigation required. b. A Memorandum for Commander, HHD, 93rd Troop Command from the NMARNG approval authority, dated 24 January 2013, subject: LOD Investigation (Applicant) for incident that occurred on 12 July 2012. It states: Reviewed for completeness: Review of all documentation is complete. SM is an MDAY Soldier who was participating in annual training from 15 July 2012 to 29 July 2012. While participating in training fell causing a ligamentous sprain of right ankle and an acute lumbar myofascial strain. Per diagnostic imaging studies done no acute fracture or dislocation observed. IN LINE OF DUTY APPROVED – Ligamentous Sprain of Right ankle and an acute Lumbar Myofascial Strain – THIS EPSODE ONLY, these are both self-limiting conditions that will not need follow on care. Not Due to Own Misconduct. c. A four-page medical statement from a Dr. P.J.C., of Neurosurological Surgery, Albuquerque, NM to the VA, dated 19 March 2015 with VA Form 21-0960M-14 (Back (Thoracolumbar Spine) Conditions – Disability Benefits Questionnaire) dated 5 November 2014. The medical statement, in pertinent part, states: (1) The applicant had several line of duties: July 2012 injured his lumbar and right ankle. Treatment was provided at the emergency room for a right ankle sprain and lumbar back strain. When released from annual training, he was treated at the VA for follow on care with his primary physician. (2) During active duty training in May 2013, he suffered a left shoulder strain, which a magnetic resonance imaging (MRI) results demonstrated in a left shoulder rotator labrum tear and he received a surgical operation. A similar incident occurred per his LOD while he was performing combatives [training] and injured his right shoulder in December 2010 and surgery to repair his right shoulder for labrum tear was completed. An LOD was reviewed that confirmed the injury occurred during military training. (3) Patient stated during his visit at the clinic in past noted that he continued to suffer from chronic pain through 2012 and 2013. He was referred for further treatment on his lower lumbar strain, intervertebral disc syndrome/lumbosacral with further consult of epidural steroid injection therapy. He has received follow on care with another epidural steroid injection as recent as February 2015, and is scheduled for another injection on March 31, 2015. He continues to experience chronic pain, which worsens with movement. (4) Her medical opinions are based upon her physical examination of the applicant, review of medical and/or service records, her education training and experience, and upon reasonable medical probability and reasonable medical certainty. It is her medical opinion that the injuries, impairments, and disabilities set forth in her diagnosis and computation of service connected disability were, as likely as not, due to and a consequence of his military service. (5) VA Form 21-0960M-14, which was completed and authenticated by Dr. PJC on 5 November 2014, on behalf of the applicant claiming the following diagnoses for disability benefits: lumbago, lumbago with right sided sciatica, bilateral shoulder pain, backache, cervicalgia, lumbosacral sprain, degenerative disc disease. d. A DA Form 2173, dated 23 October 2014, which shows that while on IDT, he was evaluated by the 377th Medical Group on 31 July 2014, after feeling discomfort while conducting physical fitness training during drill weekend on 11 July 2013. His medical documents and an MRI (these documents are not available for review) revealed his injury as disc degeneration, not otherwise specified, back. The injury was considered to have been incurred in LOD with no formal investigation required. e. A Memorandum for Commander, HHD, 93rd Troop Command from the NMARNG Investigating Officer, subject: LOD Determination (Applicant), dated 13 April 2015. It states after careful review of all medical documents, sworn statements, training records the determination for the formal LOD investigation is: In Line of Duty. It further states: It is clear that [Applicant] was present for duty on assigned IDT status that he did not appear to be under the influence of alcohol or other intoxicating drugs that he did not engage in misconduct of any other type that he complained of low back pain after engaging in PT with his unit. He did seek medical attention and was found to have herniated discs of three levels from L3 to S1 along with Radiculopathy. Of note, [Applicant] had a prior line of duty for low back pain, thus this is an aggravation of a prior duty related condition. f. A memorandum for Joint Forces Headquarters, NM, 93rd Troop Command from the NGB (the approval authority), Arlington, VA, dated 18 August 2015 with enclosure DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status). It stated that the applicant is determined to be "Not In Line of Duty - Not Due to Own Misconduct" for degenerative disc disease. It stated: [Applicant] was on IDT status on 11 July 2014. The DA Form 2173 notes the diagnosis of disc degeneration associated with physical training during drill. [Applicant] was evaluated on 31 July 2014 with history of chronic low back pain with injury playing volleyball in 2012. There is no medical evidence to support acute disc injury during the period of IDT and there is no evidence of service aggravation affecting the underlying medical condition. In accordance with Army Regulation 600-8-4 [Line of Duty Policy, Procedures, and Investigations], Chapter 4-8 e(2), his back condition existed prior to service and there is no medical evidence of aggravation by this period of active duty more than it would have been worsened or aggravated in the absence of military service. If an EPTS condition is not aggravated by military service, the determination will be not in the line of duty. g. A Memorandum from HRC, subject: LOD Investigation Appeal (Applicant), dated 16 December 2015, which states: (1) After a thorough administrative review of your LOD Investigation, it was determined the findings of "Not In Line of Duty - Not Due to Own Misconduct" will stand. (2) Army Regulation 600-8-4, Paragraph 4-8 (e)(2) states if an EPTS condition was not aggravated by military service, the determination will be "Not In Line of Duty-Not Due to Own Misconduct." (3) After reviewing provided documentation and medical records from the electronic medical record system used by medical providers of the U.S. Department of Defense (Armed Forces Health Longitudinal Technology Application (AHLTA)), it has been determined your diagnosis of degenerative disc disease was not service-connected or service aggravated. (4) This LOD appeal is centered around an IDT weekend drill from 11-13 July 2014, where you stated that you experienced back pain while performing organized physical fitness activities and while sitting/standing and walking, you did not report any history of a traumatic event during IDT on that weekend. According to the medical records provided, your back pain has dated back to 2005. In 2012, you stated that you re-aggravated your back condition during an IDT week-end drill, thus this condition existed prior to incident on 11-13 July 2014. (5) An MRI was performed on 27 August 2013 and revealed mild degenerative disc disease and disc bulging at L3-L4, L4-L5, and L5/S1. There was no indication of an acute process. Degenerative disc disease is a condition that takes years to develop. It is a chronic condition and is not associated with acute trauma. In December 2014, you reported to the pain specialist that your chronic back pain was constant, but made worse with lifting, bending, sitting, and standing. (6) There is no indication that your degenerative disc disease was worsened or aggravated as a result of military service more than it would have been worsened or aggravated in the absence of military service. All the activities that you state makes your back pain worse, are also activities that would make the condition worse as a civilian. It is not possible to discern whether the activities during your military service were any more aggravating to your condition than the activities from your civilian life style and job. (7) You have exhausted all other administrative remedies, you may appeal this decision to the Army Review Boards Agency. 4. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) was convened on 29 December 2015 at the National Capital Region. The applicant was evaluated for the following seven medical conditions, which were determined to be unfitting: lumbar spine degenerative disease and intervertebral disc syndrome; left shoulder status post arthroscopy; triangular fibrocartilage strain; left ankle lateral collateral ligament sprain; left lower extremity radiculopathy; right lower extremity radiculopathy; and right pectoral tendonitis. a. The PEB found him physically unfit and recommended he receive a 60 percent (%) disability rating and his disposition be permanent disability retirement. b. His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). He concurred with the findings and recommendations on 8 January 2016 and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. c. A DA Form 199-2 (U.S. Army Physical Disability Agency (USAPDA) Revised PEB Proceedings), dated 18 February 2016, administratively corrected the PEB findings by increasing the disability rating for the medical diagnosis of right pectoral tendonitis, thereby, increasing his overall disability rating to 70%. The PEB's findings and recommendation were approved for the Secretary of the Army by the appropriate authority on 18 February 2016. 5. Orders D-013-96, issued by the USAPDA on 13 January 2016 and amended by orders on 18 February 2016, placed the applicant on the Retired list on 17 February 2016, by reason of retirement for permanent physical disability with a 70% disability rating. 6. The applicant's NGB Form 22 (Report of Separation and Record of Service) shows he was honorably transferred to the USAR Control Group (Retired Reserve) on 17 February 2016, under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a (14), due to his medical disqualification for further military service. 7. The applicant provides, in addition to the evidence cited above: a. Department of Veterans Affairs (VA) medical documents (radiology reports and progress notes), dated 2 September 2014, showing an MRI was done on 27 August 2014 and a diagnosis was determined to be mild degenerative disease at the L3-L4 through the L5/S1 levels with bulging discs. A progress note dated 2 September 2014 indicates he requested documentation of current diagnoses, which includes patellar tendonitis, tinnitus, right wrist tendonitis, shoulder pain, ankle injuries, and chronic back pain. b. NGB Form 23B, prepared on 24 November 2015, which shows he was credited with 19 years of creditable service for retired pay. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 2. Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier providing standards and considerations used in determining LOD status. a. A formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 completed by the medical treatment facility and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigation officer (IO) who completes DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. b. Paragraph 2-6 states decisions on LOD determinations will be made in accordance with the standards set forth in this regulation. Injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "not in line of duty – due to own misconduct". Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. c. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. d. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. e. Paragraph 4-8e states the following concerning injury or disease existing prior to service. (1) The term "existed prior to service (EPTS)" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service re. Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. (2) The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition. The doctor annotates the Soldier's medical records as to whether the condition existed prior to service. If an LOD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service. If an EPTS condition was aggravated by military service, the determination will be "in line of duty." If an EPTS condition is not aggravated by military service, the determination will be "not in line of duty – not due to own misconduct." f. Paragraph 4-17a states a Soldier may appeal, in writing, within 30 days after receipt of the notice of the LD determination. For appeals not submitted within the 30-day time limit, the reason for delay must be fully explained and a request for exception to the time limit justified. The appeal must be personally signed by the soldier unless the Soldier is physically unable to sign or is mentally incompetent. In such cases, the appeal will include evidence of the condition that prevented the soldier from personally signing. Appeals will be submitted as follows: (1) If a Soldier is assigned within the geographic area of responsibility of the original final approving authority or is a Soldier of the ARNG, the appeal will be sent through channels to the final approving authority. The final approving authority may change his or her previous determination of "not in line of duty" to "in line of duty" if there is substantial new evidence to warrant it. If the final approving authority determines that there is no basis for a change in the determination, it will be so stated by endorsement and the appeal will be sent to HQDA (AHRC–PED–S), Alexandria, VA 22332, for final review and determination. (2) If a Soldier is no longer assigned in the geographic area of responsibility of the original final approving authority, the soldier may send the appeal directly to HQDA (AHRC–PED–S), Alexandria, VA 22332. DISCUSSION: 1. The applicant contends he incurred a back injury during the weekend of 11 July 2014, which was not an EPTS injury but was aggravated by service. In addition, he contends his LOD determination should have listed additional injuries, including lumbago/lumbosacral strain/sprain. bilateral lumbar radiculopathy, and lumbar radiculopathy/sciatica. 2. The applicant was evaluated by the 377th Medical Group as an out-patient after sustaining a physical injury on 11 July 2014. Medical documents, including an MRI, revealed his back injury as disc degeneration, not otherwise specified. This was the only condition that was evaluated. 3. An investing officer determined his injury was "In Line of Duty" and noted he had a prior LOD for low back pain. 4. After a review of his entire medical history by senior medical authorities, the NGB, on 18 August 2015, determined that his status, vis-à-vis his injury of 11 July 2014, was "Not In Line of Duty - Not Due to Own Misconduct" for degenerative disc disease. The NGB cited as reasons: a. There is no medical evidence to support acute disc injury during the period of IDT and there is no evidence of service aggravation affecting the underlying medical condition. b. In accordance with applicable regulatory guidance, his back condition existed prior to service and there is no medical evidence of aggravation by this period of active duty more than it would have been worsened or aggravated in the absence of military service. Therefore, if an EPTS condition is not aggravated by military service, the determination will be "Not In Line of Duty." 5. An appeal was initiated to the Headquarters, Department of the Army, wherein HRC provided a memorandum to the applicant on the appeal findings. It noted: a. After a thorough review of provided documentation and medical records, it was determined that his diagnosis of degenerative disc disease was not service-connected or service aggravated. b. The LOD investigation status of "Not In Line of Duty – Not Due to Own Misconduct" will stand. 6. There is a presumption of administrative regularity in the conduct of governmental affairs. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Vetted through medical channels, the NGB, and HRC during the appeal process, the applicant's medical condition was determined to be one that existed prior to service. Therefore, by regulatory guidance the condition in question was determined to be "Not In Line Of Duty." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001844 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001844 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2